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HomeMy WebLinkAbout0 - Public Comments - Agenda ItemsCD V ° add �s:�a�zli.cl, _l May 28, 2®13 Coa ncH Agenda Rem Comments-,, ,,,.: 28 M 1. The following comments on items on the May 28, 2013 Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(d)vahoo.com ), 2210 Private Road, Newport Bebch'92660 (949 -548 -6229) - Item 2. BUDGET DISCUSSION Although the agenda announcement for this item is certainly well intentioned, I feel it is directed primarily to insiders, for with no staff report there is no indication of where members of the public unfamiliar with the budget process can find the supporting documentation necessary to become informed in advance of the discussion. And that documentation (the 172 page Performance Plan, the 125 page Capital Improvement Plan, and 434 page Budget Detail), if found, is sufficiently daunting that the brief oral reports and PowerPoints offered to Council on isolated topics are unlikely to provide any real understanding. In short, I don't know that it's any better in any other city, but having observed three or four of these cycles, my impression is that the budget process in Newport Beach is neither clear nor accessible to the average citizen, nor even to those who attempt to watch closely, nor perhaps even to the Council members. Such basic information as whether staff is proposing to give employees raises, and if so, how large, is not readily apparent. The Performance Plan gives the public only departmental totals of salaries and benefits compared to prior years, which is affected by staffing changes. And while the Budget Detail gives the proposed pay rates for individual positions for the coming year, it does not identify what the rates for those positions were in prior years. The public is left having to sort through prior year Budget Details, attempting to compare and distinguish proposals from actuals. And some positions cannot even be clearly identified. For example, I am unable to determine how much our Municipal Operations Director earns. On page 184 of the Budget Detail (page 221 of the PDF version) I find a "MUNICIPAL OPS DIRECTOR" proposed to be paid $90,138.40, plus benefits, for half -time work in that position in FYI 4, but if I assume the other half he will be paid is for performing the "ADMINISTRATIVE MANAGER" role, then the total of the two comes out to less than we are proposing to pay the "DEPUTY MUNIPAL OPS DIRCTR" ($146,851.20 per year, plus benefits) which seems unlikely to be right. Aside from the Capital Improvement Plan, the lack of transparency as to what we planning to spend is even worse when it comes to the City's daily operations. Although 434 pages of Budget Detail may seem very thorough, knowing that $215,075 of the City Council budget is proposed to be spent on "SERVICES -PROF & TECH NOC" (page 47, where I believe "NOC" means "Not Otherwise Charged "), and another $330,000 on "SPECIAL DEPT EXPENSE NOC" is hardly very informative — and likewise with all the other departments. Presumably the budget is based on specific anticipated expense items, but the public (and probably the Council) has no idea what those things might be. For example, in Item 11 on this evening's agenda, the public May 28, 2013 Council agenda item comments - Jim Mosher Page 2 of 10 learns that in the coming fiscal year we will giving $486,952 of our taxpayer money to something called the "Metro Cities Fire Authority." I have no idea where to find that in the budget. Spot checking other details at random does little to increase confidence in the integrity of the process. For example, on page 27 (page 37 of the PDF) of the Budget Detail we see a table of "Expenditures by Fund." The dollar numbers seem to add up, but the percentages cited do not (21.28% for Police and 17.06% for Fire would not seem to add to 36.60% for both). For those who do attempt to follow the City's budget information web links, one finds that the Budget Presentations page has not been updated for more than three years. Finally, the budget area in which the City most fails the public is in letting the public see how its money is actually being spent during the year. Such neighboring cities as Costa Mesa, Irvine and Laguna Beach routinely begin their Council meetings with a consent calendar item, which the public may review prior to the meeting and "pull" for discussion at the meeting, disclosing the most recent claims, demands and warrants — that is the register of claims and normal bills received, and the checks to be issued to pay them. To the best of my knowledge, the public in Newport Beach sees none of this, and has no practical means to know what is being paid, to whom, or to question its propriety. CLOSED S ESWON In reviewing the disclosure of warrants paid by neighboring cities, I was surprised and pleased to discover that in Huntington Beach the agenda announcements of litigation to be discussed in closed session include a brief, readily understandable explanation to the public of what the litigation is about. Newport Beach could serve its public better by adopting a similar approach. In the case of the present agenda, with respect to Closed Session Items ILA and 11.B, it could certainly better inform the public, without in any way impairing the confidentiality of the closed session discussions, by disclosing: (1) what and why we are negotiating with the Girl Scouts of Orange County about the Marina Park property (I assume this has something to do with the Girl Scout House which the City will be moving and reconstructing, although at whose expense I'm not sure), and (2) why we are reopening negotiations with all the employee labor groups (which one might have thought we recently concluded negotiations with). Item 9. Minutes for the May 94, 2093 Meetings Since the Mayor has expressed displeasure with adopting public suggestions intended primarily to improve style or clarity, only the most obvious errors in spelling, grammar or content are pointed out below. The page numbers in these suggested corrections refer to Volume 61. Passages from the draft minutes are shown in italics with suggested changes in st•'� underline format. May 28, 2013 Council agenda item comments - Jim Mosher Page 3 of 10 1. Page 153: a. Under 1. ROLL CALL - 4:00 p.m." — the results of the roll call is not provided b. In paragraph 3 from end: "...parking which sets preeedeflee precedent for time - restricted parking in the area." Page 163: In paragraph 2 from end: "... while maintain maintaining the individuality of each ...." 3. Page 167: a. Line 1: "... that valet serve service will be available to park the cars in the lifts." b. First full paragraph: "He noted that no existing non - medical building in the area can be parked "medical" ... MF Dr. Haskell confirmed that both of his buildings are parked to code." 4. Page 168, first full paragraph: It may not be necessary, but the minutes do not note that Rick Martin, project architect, was introduced by John Bral, the applicant. Item 3. Code Amendment in Respect to the Periodic Review of Development Agreements The staff report says that adoption of the proposed ordinance will result in "Approving Code Amendment No. 2013 - 002," but since the terminology "Code Amendment No. 2013 -002" does not appear in the ordinance, nor is any explanation given in the staff report, most of the public will probably have little idea what is being referred to. Item 4. Ordinance Amending !Various Provisions of the Newport Beach Municipal Code If adopted, this 68 page ordinance will change sections and subsections of numerous portions of the existing Newport Beach Municipal Code. The strikeout and revision of so many isolated sections without any indication of the context in which they occur makes it very difficult for the public, and I assume the Council, to follow and verify what is being done. Many of the changes appear to be routine and necessary corrections of outdated cross - references to other code sections and laws. But some of the changes appear substantive, and if the bulk of the 68 pages are technical, it seems poor public policy to mix in substantive policy changes, even if minor, where they are likely to be adopted without adequate review. According to the May 14 staff report, the main areas of substantive change are: (1) parade and motorcade regulations, (2) parking meter payment policies, and (3) rules for "service of process." As to the first of these, a spot check suggests that the proposed new language contains typos (for example, in the proposed new Subsection 11.03.060(E)(4)(p) was presumably intended to read: "... and is designed to be held purely for private profit"), and the definition of "Parade" proposed to be moved to Section 11.03.030 has been muddied to read: "... which does not May 28, 2013 Council agenda item comments - Jim Mosher Page 4 of 10 comply with traffic regulations or controls provided in this Code and the California Vehicle Code," which could be taken to mean the regulation being ignored has to appear in both codes to make an event a "parade." More importantly, it appears to me that many of the existing parade rules and regulations have not been copied over from the existing NBMC Chapter 13.16, something that is not apparent from seeing only little snippets of code out of context. I am unable to tell if this is an intentional change in policy, or merely reflects the proposer's belief that in administering the code no one really pays much attention to the exact details, anyway. I have not had time, and do not know if the Council has had time, to review the many changes to Title 12, regarding parking meters. The effort to clarify and regularize "service of process" seems to have been confined to Title 17 (the "Harbor Code "), but in doing this, the proposer appears to have taken the liberty to make many other changes, some of which appear to have substantive effects on interpretation, for example to Sections 17.10.070(A), 17.20.020(B), 17.25.020(1)(2), as well as assigning to the Harbormaster /Sheriff's Department duties formerly assigned to the Director of the Harbors, Beaches and Parks Department of the County of Orange. And the non - substantive changes are not entirely successful, either. For example, the proposer has attempted to clean up the references to "Planning Director" in Title 17 by deleting the definition from Subsection 17.01.030(M) and explicitly spelling out "Community Development Director" in Subsection 17.05.060(D), but failed to notice a reference to "Planning Director" in Subsection 17.10.050(E), which, as best I can tell, would be left undefined after adoption of this ordinance, were it not for Ordinance 2011 -17 (perhaps unknown to the proposer ?) which previously added a disclaimer to the entire NBMC that "The term `Planning Director" or "Building Director" as found in the Newport Beach Municipal Code, or in any contract or agreement to which the City is a party, shall be deemed hereafter to refer to the Community Development Director." It would seem that, at a minimum, the proposed changes to Title 17 should have been presented to the Harbor Commission for their review and comment before this ordinance was presented to Council. As it is, I don't think anyone has the time to really judge or understand the full import of all the changes to 209 out -of- context fragments of Municipal Code proposed by this ordinance. Item 5. Ordinance Disestablishing the Marine Avenue Business Improvement District Under "Funding Requirements," the staff report refers to a proposal to allocate $40,000 in the FY 2013 -14 budget to an as- yet- to -be- created merchant association, plus $10,000 more for marketing provided that association uses Newport Beach and Company for its marketing efforts. I do not believe this is a wise or proper use of public funds, in part because the City does not have the financial means to similarly support every self- designated four - member association May 28, 2013 Council agenda item comments - Jim Mosher Page 5 of 10 that might sprout up (see also Item 17), nor do I see endorsement by Council of that proposal as part of either the ordinance or the action recommended on tonight's agenda. Item 6. Ordinance Disestablishing the Balboa !Village Business Improvement District Although the "Balboa Village" BID seems to enjoy a somewhat larger and more interested membership than that on Balboa Island, my comment is the same as for Item 5. Item 8. Award of Contract - Pump Station and !,dater Wells Improvements 1. Since the Council is being asked to approve a contract for up to $856,990, it would seem useful for the Council, and public, to see, or at least be provided a link to, the draft contract, in particular to see the proposed scope of service, and matters such as whether the work will be performed at prevailing wages. 2. The staff report refers to changing "motor controllers," which one might assume involves mostly electronic circuit boards, making it unclear where the cost is. 3. Does the high price mean the contractor will be providing the equipment to be installed? If so, would it not be cheaper for the City to buy the equipment directly from the manufacturer, avoiding an additional layer of markup, and pay only for the labor involved in installation? 4. Does SCW Contracting Corporation have licenses to do work in Newport Beach and Fountain Valley, and if not, will they be required to obtain them? Item 9. Professional Services Agreement to Prepare a Citywide Bicycle Master Plan 1. I am impressed by the "Scope of Services" proposed by "Alta Planning + Design of Los Angeles" particularly in that it appears to show some actual thought and customization to the potential needs of Newport Beach, rather than being entirely one - size- fits -all boilerplate. 2. 1 am somewhat puzzled by the preceding reference to "of Los Angeles," and comments in the report that Alta staffers live locally. Although referred to as a California corporation, the contract (on pages 1 and 8) gives a Portland, Oregon address, both for the corporation and the contact person. 3. Alta Planning is not currently listed in the City's business license database. Will they be required to obtain a business license to work for and in the City? 4. As I believe I have previously commented, although a bike rider myself, I would be more comfortable with the role to be played in this process by the Oversight Committee if it included voting members who were not bike users or enthusiasts. I suspect that is a viewpoint that will be underrepresented, and may not be adequately addressed. May 28, 2013 Council agenda item comments - Jim Mosher Page 6 of 10 Item 90. Professional Services Agreement for Additional Marina Park Design Services 1. The staff report refers repeatedly, but without any clear explanation, to a need to pay for "design fee escalation" and new and increased "escalation allowances." It also suggests, on page 9 of 14, that $74,240 of the requested new charges is for "Work included in previous PSS" (which I assume stands for "Project Scope of Services'). 2. It might have been helpful to include the existing contract so the Council (and public) could see the escalation clauses we have apparently agreed to, and also a clearer accounting of what we have already paid, and for what. 3. If the tasks were previously included, did we previously pay for them, and are we now being charged twice for the same things, or increased rates for items previously contracted for? Item 99. Amendment to Joint Powers Agreement for the Metro Cities Fire Authority Although this specific agenda item has only to do with the ratification of the City of Brea as a new member of the Metro Cities Fire Authority, I have a generally dim view of joint powers agreements, and would have hoped that the staff report might have provided a clearer explanation of the benefits Newport Beach residents obtain from our $486,952 per year contribution to this enterprise, particularly in view of the fact that most of our neighboring cities do not seem to have chosen to participate. I am also puzzled that the Council's appointment of representatives to this joint powers Board is not, as best I can tell, to be found on the Clerk's Maddv List. Nothing in the attached agreement appears to require the Council to appoint City staffers, and the fact that our representatives are staffers not connected with the Fire Department, and presumably not particularly conversant with Fire Department needs, also seems odd, and might merit explanation. This item leaves one wondering how many other joint powers agreements Newport Beach might be a party to, imposing unknown financial and other obligations on the City. For example, according to a City webpage, Newport Beach has since 2006. been not only a member, but also the treasurer of something called the Integrated Law and Jusice Agency of Orange County (ILJAOC), but it is unclear what that group does, where they meet or what benefit our effort provides us. Item 92. Confirmation of Voting Delegate and Alternate for the 2093 League of California Cities Annual Conference The reference in the staff report to the need for travel by Council members to be authorized "pursuant to Charter Section 402 and City Council Policy F -8' raises the interesting question of whether any other travel by Council members has, or needs to be, pre- authorized. I personally do not recall any other such clear and specific request having come before the Council, even May 28, 2013 Council agenda item comments - Jim Mosher Page 7 of 10 though it is probably also required, if the City is to pay, by 2005's AB 1234 (specifically, California Government Code Section 53232). Item 94. Quarterly Business Report — January through March 2093 Although I do not think of government as being in any way equivalent to a business, I do feel, as Councilman Henn frequently reminds us, that the Quarterly "Business" Reports (QBRs) provide useful summaries of certain aspects of the City's activities. Quarterly City Report might be a more appropriate name. Nonetheless, like my own comments, they contain a number of errors and inaccuracies, usually, one assumes, inadvertent. Here are a few I hadn't noticed or mentioned before: 1. In the Table of Contents: a. None of the groups listed under "Council- Citizen Ad Hoc Committees" are truly "Ad Hoc' (that is, having definite short -term termination dates or events). b. The Tidelands Management Committee, as its page explains, has no citizens regarded as committee members, and therefore arguably should be listed as a "Council Committee" (the red category, albeit with a Citizens Advisory Panel in attendance). 2. On page 14, the statement that "When the board is called into session, staff allocates approximately six hours to each session' makes it difficult to understand how staff can justify the $6,000+ fee charged for calling the Building & Fire Board of Appeals into session to hear a citizen concern. 3. On page 17: a. In describing the Harbor Commission, "Committee Authorization: City Charter, Article Vll, Section 702" is a bit confusing since that Charter Section is simply the general authority given the Council by the people to create additional boards and commissions (but not, it might be added, "committees" and "Council- citizen committees "). According to the City Clerk's Maddy List, the existence of the present 7- member Harbor Commission was actually authorized by the Council through its adoption of Ordinance 2001 -25. b. "City Council Liaison Council Member Gardner" should not be listed under "Committee Members." It is a strictly unofficial, voluntary service she provides, and she is not a member of the Commission. c. The "Committee Authorization" and "Committee Members" entries should probably read "Commission Authorization" and "Commission Members" or "Board Authorization" and "Board Members," as appropriate, throughout the QBR. Boards and commissions are normally thought of as independent bodies consisting entirely of persons other than those making the appointments, as opposed to committees, which are generally understood as subsets of the membership of the appointing body (that is, sub - groups of Council members only, or board or commission members only). Hybrid Council- citizen committees are rather odd beasts singled out for special scrutiny in the Brown Act because of the potential for evading open meeting policies. May 28, 2013 Council agenda item comments - Jim Mosher Page 8 of 10 4. On page 18, the Parks, Beaches & Recreation Commission met only twice during the quarter, and "Street Tree Designation discussion —received and filed' appears to be a reference to the designation of the California Live Oak as a replacement for the Blue Gum Eucalyptus on the Groves Bike Trail. Although on the March 5, 2013, Consent Calendar, this was an action item, not a receive and file, and it might be noted that the California Live Oak has as bad or worse a reported failure record in California as the Blue Gum Eucalyptus. 5. On page 19, under Planning Commission: a. The end of Purpose D should read: "... not inconsistent with the provisions #ire of this Charter." (it is attempting to quote City Charter Section 707) b. Under "Quarterly Progress Report": i. My recollection is the Commission's deliberation of Uptown Newport was completed in December. ii. "Mariners Point development' should read "Mariners Pointe development' iii. Under "Projected Tasks," I believe "Amendment to the Telecommunications Ordinance" has been shelved. 6. On page 22, 1 think the implication that applications for the Bicycle Master Plan Oversight Committee were reviewed by "an Ad Hoc committee consisting of three City Council Members" is misleading. My recollection is that insufficient applications were received, and they are all forwarded to the full Council for voting without any recommendations. 7. On page 24, "Mayor Gardner, Council Member Curry" should read "Mayor Curry, Council Member Gardner." 8. On page 27, "Planning Commissioner Fred Amen' should read "Planning Commission Secretary Fred Ameri." 9. On page 28, "Council Member Rosansky' should read "Council Member Petros." 10. On page 29, 1 am not aware the Tidelands Management Committee has met to designate a Citizens Advisory Panel (CAP) since being "amended" by Resolution 2013 -35 on April 23, 2013 (as acknowledged under "Committee Authorization "), and in any event there seem to be eight CAP members listed compared to seven authorized in the resolution. 11. On page 33, under "Balboa Blvd. Beautification," the report does not make clear if the City has applied for a permit or waiver from the California Coastal Commission (CCC). The letter the City received from the CCC regarding the Groves Bike Trail tree removals makes clear that in the absence of a certified Local Coastal Program, the City lacks the authority to make the required determinations of consistency with the Coastal Act, including for landscaping projects. 12. On page 61, under "West Newport Beach Facility Planning ": a. The QBR mentions the old City Hall site reuse plans, but fails to explain why it is not being considering "holistically" with the sites of West Newport facility improvements. Given its history, it might, indeed, be the best and most logical location for a new community center, or perhaps police headquarters. b. The QBR also fails to mention or explain why instructions were given in closed session regarding the existing West Newport Community Center. May 28, 2013 Council agenda item comments - Jim Mosher Page 9 of 10 Item 18. Marina Park Coastal Land Use Plan Amendment I am doubtful of the reality of the City's desire to house screened emergency or communications equipment in the tower element (a requirement for its construction), and find curious the agreed to language encouraging public viewing opportunities, but prohibiting floor area. I'm not sure what the viewing public is supposed to stand on. In view of the current plans for construction at the old City Hall site (and perhaps at ExplorOcean) which I think may exceed 35 feet, I also think the City might wish take caution from this tower element being called out as (apparently) the only allowed exception to the 35- foot height limitation in the Shoreline Height Limitation Zone. I believe City representatives, in their presentation to the Coastal Commission made a point of the Marina Park fake lighthouse being the only exception they would ask for. Item 17. Donation Agreement with Crystal Cove Alliance I'm not sure I entirely understand the benefit to the City's taxpayers of making this donation to a private non - profit, albeit one affiliated with a state park. The cottages to be "renovated" are meant to hark back to a simple time, and life was indeed simpler when the California Supreme Court had the courage to interpret the California Constitutional prohibition against making gifts of public funds as applying to any gift to any institution other than the orphanages and poor houses called out in that provision. In general I think it would still be wise for elected officials to return excess funds not needed for core municipal functions to the taxpayers and allow the taxpayers to decide, individually, which, if any, of many worthy causes they might wish to support. Item 18. Appointment to the Environmental Quality Affairs Committee The staff report mentions that "EQAC's membership is designed to reflect geographical diversity within the City." More precisely, the current enabling resolution says the membership consists of "Seven members appointed by the City Council reflecting geographical diversity within the City, and two non - voting Council Members appointed by the Mayor, confirmed by the City Council." Towards that end, the Council may wish to know the current membership consists (according to the applications provided as part of agenda Item 11 at the Council's February 26, 2013 meeting) of two citizen members from District 1, and one each from Districts 2, 4, 5, and 6. Districts 3 and 7 are not represented. It is unfortunate there is no applicant from District 7, but the desire for geographical diversity would seem to argue in favor of Mark Tabbert (District 3/ Santa Ana Heights), as the other two nominees are from District 5, which is already represented by Josh Yocam. May 28, 2013 Council agenda item comments - Jim Mosher Page 10 of 10 Item 19. Initiate Amendments to the Land Use Element, Coastal Land Use Plan, Zoning Code, and /or Zoning Map 1. I think his proposal to initiate the preparation of a General Plan amendment to be placed on the November 2014 ballot might be viewed as a backdoor way to get taxpayers to pay, and the City to promote, a Greenlight vote which The Irvine Company might otherwise have to fund and defend to transfer development from Newport Coast to Newport Center /Fashion Island. 2. 1 also find curious the implication, if it is intended, that a need to "Increase nonresidential building square footage in Mariner's Mile, Lido Village and /or West Newport" was identified by the recent Neighborhood Revitalization Projects. My recollection is that the Neighborhood Revitalization Committee disbanded before considering Mariner's Mile, and that its conclusions about Lido Village and West Newport were limited to landscaping /cosmetic issues. Item 20. Budget Amendment to Update Certain Revenues Estimates, and Authorize Fund Transfers and Increase Expenditure Appropriations 1. I wonder if the reference in Recommendation 1 to "Fiscal Year 2011 -12 surpluses" is a typo for "Fiscal Year 2012 -13 surpluses "? If not, I am having trouble understanding how the disposition of surpluses at the close of the previous year continues to impact what must be done at the close of this year. 2. The table presented on page 3 of the staff report seems to be a list of categories in which revenues are coming out differently than expected, but I would think there must be many others. For example, if tourism and building activity are up, wouldn't the revenues from permit fees also be higher? And how about parking revenues, or we at a tier in the parking contract where Central Parking absorbs, and gets to keep, all the increases? 3. In the table on page 4, without any further explanation, the entry and notation for the Back Bay Science Center are difficult to understand: to "close fund' wouldn't one want to be transferring money out rather than in?